Castellanos v. Small, 2014 WL 4413439 (C.A.9)

Castellanos is a case of overwhelming guilt, and the jury convicted him of second degree murder.  No jury would have found him “not guilty.” The facts are simple. In the presence of witnesses, the defendant (a gang member who had just been released from jail) shot a young boy in the head because he would not join a gang.  The trial was straightforward and nothing suggests the jury believed the defense of an “accidental shooting.” The trial record supports the sufficiency of evidence. Of course defense counsel filed a Batson motion on grounds the prosecutor excused an Hispanic juror – yet he had accepted 8 Hispanic jurors. The trial judge denied the motion.

On appeal in state court, Castellanos asserted no significant evidential or instructional error but argued his Batson motion; Peo. v. Castellanos, 2007 WL 2660214 (Non.Pub.). The California Court of Appeal disposed of the motion in a few paragraphs citing a California Supreme Court case deferring to the experience of trial judges and their familiarity with voir dire.  The California Supreme Court denied review.

On federal habeas in district court the judge denied the petition, and Castellanos appealed. The 9th Circuit panel, none of whom had trial experience, reviewed the same record as the state court trial judge, the California Court of Appeal, the California Supreme Court (denied review) and the district court judge.  The panel spent endless pages reviewing the cold voir dire record and concluded the prosecutor had excused a potential Hispanic juror on racial grounds despite his explanation of the reasons for the challenge to the judge who supervised the trial.

That a federal court would grant habeas corpus on collateral review without any deference to the state court, as required by the Supreme Court, and reverse the judgment on Batson grounds is inconceivable and a manifest injustice. This decision parallels Rice v. Collins, another 9th Circuit Batson reversal by the Supreme Court who correctly said: “The 9th Circuit simply substituted its judgment.”

The 9th Circuit is so fixated on race that it impairs their judgment. (Not only in criminal cases but immigration as well.) Castellanos was tried in 2005, nine years ago.  What are the chances of retrial by the prosecution after this length of time?  Ordering reversal of a murder case because one juror was allegedly wrongfully excused, despite the trial court, state court Justices on the Court of Appeal, and Supreme Court to the contrary, is irresponsible. The Supreme Court insists federal appellate judges respect and defer to state court judgments on habeas corpus.

Rehearing or cert.?  If cert., the Supreme Court should reverse the 9th Circuit panel decision as an “abuse of appellate discretion,” a term used by the Justices in a 9th Circuit decision reversed during the last term. And this habeas corpus petition -a collateral review entitled to double deference – overruling facts found by the trial judge and normally accepted on appeal, invites Congressional review to tighten AEDPA or eliminate federal review of state court decisions.

Note: The 9th Circuit panel used the so called “comparative analysis” system of matching questions and answers of jurors.  Worthless. Nothing in the “comparative analysis” includes the voice, demeanor, conduct, or body language of a juror.  Every  trial lawyer knows that. The 9th Circuit panel doesn’t.


U.S. v. Rodriguez, 2014 WL 44011221 (9th C.A.)

Noted for its solicitude to prison inmates convicted of murder, robbery, burglary, assault, rape, arson, and sex crimes, this 9th Circuit opinion describes prison life and the dangers posed to Correction Officers and inmates.  An expert witness explains how the Mexican Mafia runs prison life and gangs in general.  In Rodriguez, multiple gang members entered the cell of an inmate and shanked him with over 40 puncture  wounds.  The defense contended medical treatment of the victim was negligently performed, and the wounds were not the proximate cause of death. The 9th Circuit panel did a good job in dismissing this absurd contention.
The court also reviews several other issues involving evidence of gang participation; medical negligence; Brady; informants, but Rodriguez is an example of one of the most frivolous cases on prisoner’s rights ever written. An inmate with a record of violence and numerous psychiatric reports complained he could  not sleep at night because the cell lights were never turned “off.” The Corrections Officer explained the need for constant lighting because all the inmates in this section were violent and housed in single cells to facilitate observation.  A lighting expert testified extensively and the 9th Circuit panel cross examined him as reflected in its decision.  Inordinate pages of “lighting brightness” permeated the written 2-1 opinion.The court sent the case back to the district court to do something. Understandably, the dissent suggests the prison officials should run the prison.


Wood v. Ryan, 2014 WL 3563348 (9th C.A.)

A 9th Circuit panel, desperate to enjoin a Sate of Arizona execution of inmate Wood, wrote one of the highest forms of appellate injustice ever written.  The panel could find no judicial error in the trial, and an Arizona court had confirmed the death warrant. A few days before the date of execution, Wood sought a preliminary injunction from the district court.  Through his counsel, Wood contended he was entitled to the name of the drug manufacturer,the name of the drug administered in the execution, and the credentials of the administrators. The state AG provided counsel with some of the requests but not all. Defense counsel filed the petition requesting the injunction. Denied.
On appeal to the 9th Circuit, the panel granted the injunction – on grounds of the First Amendment. Unable to cite a single case as precedent, the panel tried to analyze on related grounds applicable to executions. The panel subsequently issued a stay.
In this 2-1 decision by the majority judge, who regularly reverses death penalty cases, the dissenting judge rebuts this “novel” decision unsupported by legal or historical evidence. It took the Supreme Court 24 hours to unanimously vacate the panel stay and without any supporting justification; Ryan v. Wood, 2014 WL 3600 The Supreme Court reversal explains everything.

Moore v. Biter, 742 F.3d 917 (9th Cir. 2014)

By ignoring AEDPA again and using its own “analysis,” the 9th Circuit  has written another case ready for Supreme Court reversal. Moore v. Biter is a California state court case overruled on federal habeas corpus.

Four years ago the Supreme Court disallowed enforcement of capital or LWOP sentences of juveniles in state courts on grounds minors are immature and should be offered an opportunity for rehabilitation when becoming adults. Graham v. Fla., 560 U.S. 48 (2010). Aside from the fact this “opinion” is absurd-18 year old adolescents should know murder is not allowed- a three judge 9th Circuit panel held “multiple term sentences” exceeding the lifetime of juveniles are equivalent to a LWOP sentence, and the penalty unenforceable. The panel cited no precedent.

Here is the opening sentence of the seven dissenting judges in Moore v. Biter denying rehearing of the three judge panel decision.  “Our Court defies AEDPA once again, this time by failing to distinguish a ‘life without parole’ sentence for juveniles from a multiple ‘term of years’ sentence.  A panel of this Court holds that Graham v. Fla., 560 U.S. 48 (2010) invalidates the latter, ignoring the contrary holding of the Sixth Circuit, disregarding the views of state courts across the country, and flouting Graham’s text and reasoning.”

This dissent is a serious charge but one repeatedly made by the Supreme Court in 9th Circuit cases.  The purpose of AEDPA directly condemns the three judge panel opinion that the Supreme  Court case of Graham v. Florida controls this case.  The California Court of Appeal and the California Supreme Court both held a sentence of multiple terms is not the equivalent of a life term imposed on juveniles in non homicide cases.  Whether the argument can be made that the linguistic difference in sentencing is indistinguishable, an intrepretation the 6th Circuit rejected, the result on federal habeas corpus is not to reinterpret  the rule and overturn state courts, but determine if the law  is “clearly established” Supreme Court law required by AEDPA.  It is not.

Here is the last sentence of the dissenting judges in the case: “Because the panel defies AEDPA, creates a circuit split, and threatens frequent and unjustified intrusions into state sovereignty, I respectfully dissent from our court’s regrettable failure to hear this case.”l

The 9th Circuit merely imposed its own usual ideological bias as though the case was on direct appeal from the district court.  Cert. to the Supreme Court will reverse the 9th Circuit panel.

Howard v. Clark, 608 F.3d 631 (9th Cir. 2010)

Stories about prisoners released from custody on the ground of alleged “factual innocence” are always heart-warming and sensitive. But establishing release from custody on grounds of “ineffective assistance of counsel” is a favorite alternative method of the 9th Circuit.  And “innocence” is not always established.   A twelve person jury found Howard guilty, but the 9th Circuit panel, having heard none of the testimony at trial, retried the case. The Howard case is another example of injustice to the public. As usual.

Howard was charged with murder of one man named Freeman and assault against another man named Ragland. This case was gang related, and those prosecutions are almost always difficult to prove for obvious reasons. But a liquor store employee (not a gang member), observed the shooting of the two men and unqualifiedly testified Howard as the culprit. The girlfriend of the murdered man also witnessed the shooting but was equivocal in her testimony. The defendant testified he was somewhere else.

The jurors, after hearing all the conflicting evidence, listening to the witnesses, and following the judge’s instruction, found Howard “guilty beyond a reasonable doubt.” The trial judge agreed and denied a motion for new trial. Howard appealed the verdict, and a three- judge state Court of Appeal affirmed the conviction, and rejected Howard’s assertion his attorney failed to call Ragland as a witness i.e, “ineffective assistance of counsel.”

The state supreme court denied review of the case. That should have been the end. Howard filed a petition for habeas corpus in Superior Court; denied. He filed the same petition in the Court of Appeal; denied. He failed file a petition for review in the Supreme Court foreclosing his opportunity to file certiorari in the U.S. Supreme Court. He filed a petition for habeas corpus in U.S. district court on the same ground of “ineffective assistance of counsel”; denied by a magistrate judge. The district court refused to give Howard a certificate of appealability, a document mandatorily required before seeking appeal. The 9th Circuit panel filed their own certificate, permitted the appeal, and ordered the district court to conduct an evidentiary hearing on the same ground of ineffective assistance of counsel.

A magistrate judge produced a record at the hearing to establish that a defense investigator and the DA office both tried to find Ragland but were unsuccessful. Despite this record, the magistrate judge found Ragland should have testified and counsel was ineffective in not locating him. The Magistrate judge recommended reversal and the district court judge agreed and reversed the conviction because Ragland had agreed that Howard had not shot him. The AG appealed to the 9th Circuit who accepted the magistrate’s findings.ount the number or people (jurors and judges) who heard this case before the 9th Circuit decision. This panel wondered why trial counsel (now deceased) did not use Ragland to testify.
The reasons: Ragland had 6 prior felony convictions and was on parole. A gang banger whose testimony at a trial would have been useless. Do you want that witness, who allegedly wrote a letter two years later denying Howard shot him, to testify ? Had it occurred to the 9th Circuit panel or the Magistrate judge, none of whom heard any of the evidence at trial, that Ragland’s testimony would have been told to his parole review board to demonstrate his excellent responsibility as a citizen?
No defense lawyer would have called a witness w ho would have been a joke to the jury. In identification cases the lawyers focus on the witness who inculpates the defendant. In this case, the liquor store employee would be intensely cross examined. And counsel would argue misidentification to the jury, particularly when the prosecution witness testified uncertainly.

Apparently the prosecutor did not think much of the defense when the case was returned from the 9th Circuit., and offered Howard retrial. Prosecutors know how difficult it is to retry a criminal case after 10 years. What they should have been done is seek review of the 9th Circuit decision in the Supreme Court.
Whether Howard is guilty is not the issue. Three federal judges on collateral review overturn the jurors, the trial judge, the California Court of Appeal, and the California Supreme Court on direct appeal of the verdict in state court. On habeas decisions, the 9th Circuit reverses the Superior Court, the three California Court of Appeal Justices (again) and the seven California Supreme Court Justices (again).

Amado v. Gonzales, 734 F.3d 936 (9th Cir. 2013)

This case confirms every previous Supreme Court reprimand of the 9th Circuit in collaterally reviewing state court convictions.  “Habeas corpus is a guard against extreme malfunctions in state criminal justice systems, not a substitute for ordinary error correction through appeal;” Harrington v. Richter, 131 S.Ct.770 (2011).  Collateral review (after the state court has affirmed a conviction) is subject to deference by federal courts and applies only if the decision is an unreasonable application of federal law and not a de novo appeal; AEDPA. “The habeas standard is difficult to meet because it was meant to be;” Harrington. The majority of the 2-1 9th Circuit panel completely ignores AEDPA in Amado v. Gonzales and retrys the trial entirely on its own initiative as though on appeal.

In a gang prosecution the testimony of witnesses other than law enforcement officers is not likely to come from anyone except other gang members. Obviously these witnesses are unreliable, often fear retaliation, and credibility always an issue.  In the Amado case, a black gang planned to forcibly enter a school bus carrying members of another gang.  When the bus arrived and stopped, the gang members stormed aboard and began beating and shooting riders. According to the witnesses who did testify, Amado was among the attackers who ran toward the bus when it stopped.  Some doubt arose whether he was carrying a gun, but he was not convicted of possessing a firearm; he was convicted of aiding abetting.

One of the witnesses for the prosecution was severely impeached and at trial recanted his statements he had given to police prior to trial implicating Amado and his possession of a firearm.  In fact, the witness was only briefly cross examined, presumably for recanting although he was also on probation for commission of a robbery. But Amado was tried as an aider and abetter, not a principal, and carrying a gun is irrelevant for that charge.  The majority panel wades into the trial record, speculates on what the jury might think if the prosecution had disclosed the recanting witness was on probation for commission of a robbery.

The prosecution conceded it failed to disclose the prior criminal record of this witness although that information was reflected in the witness’s probation report.  According to the panel majority, this non disclosure violated the Brady rule, and if disclosed the jury might have questioned the credibility of the recanting witness. On the defense motion for new trial the trial judge agreed the disclosure should have been made but doubted the consequence of influencing the jury who had already heard a witness recant his testimony yet they voted for a guilty verdict.  According to defense counsel, he did not discover the prior robbery conviction prior to trial and also that the witness was a member of a gang.

Many of the judges on the 9th Circuit have never tried a criminal case or presided over one.  Their naiveté is deplorable.  When a witness recants his pre trial statements to police implicating the defendant what does the jury think of his credibility?  In spite of that, the jury convicted Amado.  Other witnesses also implicated Amado, and the record does not disclose whether Amado testified.  The jury could understand all the witnesses were either gang members or familiar with gang members and knew credibility was in issue. The trial judge, who heard all the witnesses, refused a motion for new trial even assuming the prosecution should have disclosed the robbery conviction and probation report.

Where was defense counsel prior to trial?   This is a gang case and the first task a defense counsel does is demand the criminal records of all the witnesses because the probability of them having committed crimes themselves is obvious.  Defense counsel neither made no such request of the prosecution nor searched the records. And apparently he did not ask his client if any of the witnesses had criminal records.

The majority panel concludes the failure to disclose the information requires a new trial.  How do you think the prosecution will be able to do that?  This case, more than any other, ought to result in a Supreme Court decision to refuse federal appellate courts from hearing habeas corpus of state courts at all.  State courts can be limited only to cert. by the defendant alleging a “malfunction of the state court system.” The Supreme Court has previously denied the 9th Circuit reviewing state court search and seizure cases and parole hearings.


James v. Ryan, 733 F3d. 911 (9th Cir. 2013)

After having been reversed  by the Supreme Court (Ryan v. James, 133 S.Ct. 579 (2013), the 9th Circuit panel on remand rewrote its decision that will be reversed again when the State of Arizona files cert.

In a sadistic, vicious and brutal murder the defendant James kidnapped the victim, crushed his head with a rock, and threw him down an abandoned mine shaft to his death. James was convicted and sentenced to death in 1981 by an Arizona state court jury. After all appeals in state court were denied, James filed 3 post conviction habeas corpus petitions. All petitions alleged ineffective counsel (among other claims) and were denied by state court judges.  In the last (3d) petition the state court judge wrote: “. . .[as] to the entire petition . . . there are no genuine or material issues of fact or law that are in dispute that would entitle [James] to an evidentiary hearing.  No colorable claims have been made.” With that unambiguous statement, all the allegations of ineffective counsel were denied on substantive grounds. The U.S. district court agreed and denied James’ federal habeas corpus petition.

The 9th Circuit holds the state court language is a procedural ruling, the petition is not decided on the merits, and therefore AEDPA is inapplicable. Having reversed all Arizona courts and the U.S. district court judge, the panel reversed the state court penalty phase and remanded for a hearing on mitigation evidence and the ineffective counsel allegation. A 1981 case reversed once by the Supreme Court and destined for another one (unless the 9th Circuit votes to hear it en banc).

The Supreme Court has verbally lashed the 9th Circuit repeatedly for evading AEDPA, and this case is a dramatic example of judicial misapplication of the record. Harrington v. Richter, 562 U.S._ (2011).  All the habeas corpus claims in Arizona state court assert ineffective counsel.   The state court judge in the last petition wrote a 38 page opinion clearly denying the validity of all the ineffective counsel claims.  There is no procedural interpretation and the case has been decided on the merits. Another example of 9th Circuit defiance of AEDPA and the Supreme Court.

Vega v. Ryan, 735 F.3d 1093 (9th Cir. 2013)

Ignoring AEDPA again and writing a decision as though on direct appeal of a state court decision – a practice repeatedly condemned by the Supreme Court – a 9th Circuit panel reversed another case on collateral review.  Not only did the panel overrule the Arizona Court of Appeal and the Arizona Supreme Court, but reversed the U.S.District Court as well. All courts denied the petition for habeas corpus.

The district court held an evidentiary hearing on the usual “ineffective assistance of counsel” argument alleging trial counsel had failed to read the records before trial. The  magistrate judge recommended dismissal.  The district court judge agreed, but there is nothing in the record to show that counsel had failed to read the file when preparing for trial. The  9th Circuit panel cites no evidence in the evidentiary hearing to support that assertion.

Vega was convicted of sexual misconduct with his stepdaughter whose mother testified at trial her daughter had recanted her allegations. Despite cross examination of the victim on this issue, the jury convicted the defendant.  Several weeks after the trial, counsel learned the victim had previously recanted in talking with a Catholic priest.  No one, including Vega,  had told counsel about this evidence, and the Arizona Court of Appeal and the Arizona Supreme Court held this evidence not “newly discovered.”  The trial was the third trial against the defendant, and based on the two prior trials Vega and his prior trial lawyers were all aware of this recantation. Yet nothing in the record establishes the other lawyers or Vega  told counsel at the third trial. When counsel did learn of the second recantation he immediately filed a motion to vacate the verdict.  The trial  court, in addition to the Arizona Court of Appeals, the Arizona Supreme Court and the  district court judge all denied the appeal and post verdict proceedings.

How can a lawyer be “ineffective” if the defendant knows about important information and fails to tell counsel about it? The panel says the additional recantation would possibly have tilted the balance in defendant’s favor.  If the jury hears the mother of the victim tesity her daughter recanted her testimony and the jurors nevertheless convicted the defendant, where does this judicial conclusion emerge?

Congress must address eliminating federal court habeas corpus review of state courts. The record demonstrates a constant misconstruction of which this case is another example.

Lujan v. Garcia, 734 F.3d 917 (9th Cir. 2013)

Another state court conviction reversed by a 9th Circuit panel on habeas corpus grounds after the California Court of Appeal affirmed the verdict of first degree murder.

The evidence was overwhelming. The defendant Lujan repeatedly expressed his intention to kill his estranged wife.  He did so by lying in wait, smashing her head with a concrete block and, at the same time, killed a deputy sheriff whom she was dating. Killed the same way.

Detectives interviewed Lujan, informed him of his right to silence, and discussed the right to counsel but not precisely as worded in the standard Miranda card. Later on, the defendant asked if he could have an attorney present, and the detective explained obtaining an attorney on Sunday might be difficult but the decision was up to him.  The detective added some informal information and said the decision to have a lawyer lay in the defendant’s hands. Without reciting all the questions asked of Lujan, the tenor of the conversation was cordial and non threatening. The entire conversation was recorded and confirmed the absence of any coercion or threats.

At the trial in state court, Lujan admitted committing the murder, and the jury found him guilty. On appeal, the California Court of Appeal agreed the Miranda admonition “incomplete” but the confession at trial restating the same information Lujan  gave the detective created harmless error.  The federal district court on habeas corpus agreed on the incorrect explanation of of the Miranda warning. The 9th Circuit embraced this decision citing Harrison v. U.S., 392 U.S. 219 (1968-a case decided during the hey days of Supreme Court constitutional inventions).

The purpose of the Miranda rule informing suspects of the right to counsel and silence emerged to remove the constant argument of inconsistent statements between law enforcement officers and suspects occurring in a confined and threatening environment.  The Supreme Court attempted to eliminate allegations of “involuntary” statements elicited from suspects in custody by advising them of their right to silence and to the assistance of counsel. Well intentioned, but repeatedly expanded by other courts beyond its rationale as written by the Supreme Court.  Lujan is an example.

Because detectives did not read the form Miranda card but spoke to Lujan informally, without threatening or misleading him, the 9th Circuit panel granted habeas.  The trial court even ruled the confession was not involuntary.  In other words, the entire rationale underlying Miranda was absent. That consequence did not deter the 9th Circuit despite the California Court of Appeal decision or AEDPA.  In fact, because the defendant had confessed at trial, the admissibility of the confession in custody became redundant.  “No”, said the panel, if the inadmissible confession induced the defendant to testify it constituted “fruit of the poisoned tree” and could not be introduced in evidence.

Here is a case of a voluntary confession, confirmed by the defendant’s testimony at trial, upheld on appeal by a state court, but reversed by the 9th Circuit. The purpose of the Fifth Amendment prohibition of compulsory self incrimination is completely lacking in the  transcript of the confession.  The detective tried to explain to Lujan the option of talking to him or not, with or without an attorney.  According to the 9th Circuit panel, the detective failed to tell Lujan he could have an attorney before and during the questioning.  This is form over substance and a complete mis application of Miranda rationale.  Now a   man unquestionably convicted of murdering two people may go free or his retrial impaired.

It is time for Congress to end the endless charade of 9th Circuit reversals of state court convictions many years afterward on habeas corpus grounds.   Lujan is a perfect example. Under AEDPA the federal court has a heavy burden to reverse state couirts on collaeral review and must accept a reasonable state court decision-even if incorrect.  In reading the Court of Appeal decision, the state court judges interpreted the Miranda admonition and the questioning reasonably.

Stanton v. Sims, 134 S.Ct. 3 (2013)

In a case that had “reversal” written all over it, the Supreme Court reversed the 9th Circuit (again) in a brief per curiam opinion. The facts are written in the 9th Circuit opinion on p.2 of the blog (Sims v. Stanton), but briefly: at 1:00 a.m. an officer responded to a reported disturbance at a location in a gang area.  When he saw three men walking down the street, two quickly walked away into a nearby house but one continued. The officer, presuming that man might be involved in the disturbance, ordered him to stop. The man refused, hurried toward a gated house, and entered the yard. The office chased him, crashed through the gate, and accidentally collided with a woman standing behind the gate. She sued the officer who filed qualified immunity. 

The 9th Circuit refused the defense, contending the officer violated the “curtilage” and committed a Fourth Amendment violation. Aside from the silliness of the plaintiff in suing an officer who accidentally injured her in pursuit of a man, the 9th Circuit denied qualified immunity.  The Supreme Court, without commenting on the absurdity of this case and the wholly inapplicable rationale of invoking Fourth Amendment law, held that the officer in hot pursuit of a suspect under the facts of this case can enter the curtilage without a warrant for misdemeanors (P.C.148-refusing to comply with lawful order) as well as felonies and upheld the defense of qualified immunity.

Apparently if someone is injured by a law enforcement officer, acting in the course of his duties, the 9th Circuit will find civil damages without any consideration of conduct accidentally inflicted without any intent to injure someone and does not even qualify as negligence.  The officer was unaware of anyone standing in the yard behind the gate at 1:00 a.m. in the morning.  In fact, the officer’s conduct was not even negligence let alone a 1983 case. 

The 9th Circuit holds an embarrassing record of refusing to find qualified immunity.  Several years ago the court refused qualified immunity to officers who were in a high speed chase of an automobile.  The passenger either fell out of the vehicle or was thrown out, and the officers were unable to stop in time to avoid striking him.  In a 1983 lawsuit by the estate of the passenger alleging violation of due process, the 9th Circuit refused qualified immunity to the officer.  Reversed in a scathing opinion by the Supreme Court; County of Sacramento v. Lewis, 523 U.S. 835 (1998). There are more cases.